Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 1 of 24 Page ID #:24803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 CARLOS R. HOLGUÍN (Cal. Bar No. 90754) PETER A. SCHEY (Cal. Bar No. 58232) Center for Human Rights & Constitutional Law 256 South Occidental Boulevard Los Angeles, CA 90057 Telephone: (213) 388-8693 Email: crholguin@centerforhumanrights.org pschey@centerforhumanrights.org LEECIA WELCH (Cal. Bar No. 208741) NEHA DESAI (Cal. RLSA Bar No. 803161) POONAM JUNEJA (Cal. Bar No. 300848) CRYSTAL ADAMS (Cal. Bar No. 308638) National Center for Youth Law 405 14th Street, 15th Floor Oakland, CA 94612 Telephone: (510) 835-8098 Email: lwelch@youthlaw.org ndesai@youthlaw.org pjuneja@youthlaw.org cadams@youthlaw.org 16 Listing continues on next page 17 Attorneys for Plaintiffs 18 19 20 21 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION JENNY LISETTE FLORES, et al., Plaintiffs, 22 23 24 25 26 27 28 v. JEFFERSON B. SESSIONS, Attorney General, et al., Defendants. No. CV 85-4544-DMG (AGRx) OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING SPECIAL MASTER/INDEPENDENT MONITOR Hearing: Nov. 9, 2018 Time: 10:00 am. Room: 1st St. Courtroom 8C Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 2 of 24 Page ID #:24804 1 Counsel for Plaintiffs, continued 2 HOLLY S. COOPER (Cal. Bar No. 197626) 3 Co-Director, Immigration Law Clinic 4 CARTER C. WHITE (Cal. Bar No. 164149) Director, Civil Rights Clinic 5 University of California Davis School of Law 6 One Shields Ave. TB 30 Davis, CA 95616 7 Telephone: (530) 754-4833 8 Email: hscooper@ucdavis.edu ccwhite@ucdavis.edu 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 3 of 24 Page ID #:24805 1 2 3 4 OUTLINE OF CONTENTS I. INTRODUCTION ..............................................................................................1 II. THE EVIDENCE SHOWS ORR IN CONTEMPT OF THE COURT’S JULY 30 ORDER AND OTHERWISE IN BREACH OF THE SETTLEMENT. ............................... 2 5 6 7 A. ORR continues to violate the July 30 order in its treatment of class members at Shiloh RTC. .....................................................................2 B. ORR continues to deny children licensed placement without adequate reason or notice. ...................................................................7 8 1. Secure placement without adequate notice. ...............................7 9 2. Unlicensed placement without lawful reason. ...........................7 10 C. 11 1. 12 13 III. 14 15 16 19 20 IV. 21 22 V. 23 ORR’s fingerprinting policies and practices unnecessarily protract class members’ detention. .......................................... 10 ORR HAS OBSTRUCTED PLAINTIFFS’ EFFORTS TO DETERMINE WHETHER IT IS COMPLYING WITH THE COURT’S JULY 30 ORDER AND IS OTHERWISE IN BREACH OF THE SETTLEMENT. ...................................................................... 13 A. ORR’s limiting Plaintiffs’ experts’ access to detained children lacks a rational basis and appears aimed at shielding ORR’s mistreatment of class members from meaningful scrutiny................. 13 B. ORR’s invasive background checks of Plaintiffs’ mental health and other experts aim to deter effective monitoring of the July 30 order and the Settlement in general. .................................................. 16 17 18 ORR continues to unnecessarily prolong class members’ detention. .......................................................................................... 10 INDEPENDENT MONITORING OF ORR’S COMPLIANCE WITH THE COURT’S JULY 30 ORDER IS NOT A SANCTION AND COULD IMPOSE NO APPRECIABLE OPERATIONAL BURDEN ON ORR. .................................................................. 18 CONCLUSION ............................................................................................... 20 24 25 26 27 28 iii OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 4 of 24 Page ID #:24806 1 TABLE OF AUTHORITIES 2 3 Cases Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017) .......................................................13 4 Hook v. State of Arizona, 120 F.3d 921 (9th Cir. 1997).............................................18 5 Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) ........................................................18 J.E.C.M et al. v. Lloyd et al., 18-cv-903 (E.D. Va. 2018) ..........................................11 6 Organization for Reform of Marijuana Laws v. Mullen, 828 F.2d 536 (9th Cir. 1987).................................................................................................................... 18 7 Plummer v. Chemical Bank, 668 F.2d 654 (2d Cir. 1982) .........................................18 8 S.E.V. v. Lloyd, et al., 18-cv-4555 (S.D.N.Y. Oct. 5, 2018).......................................11 9 Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881 (9th Cir. 2005) ...........................19 Williams v. Vukovich, 720 F.2d 909 (6th Cir. 1983) ..................................................18 10 Statutes and Regulations 11 Paperwork Reduction Act, 44 U.S.C. § 3501 ............................................................18 12 Fed. R. Civ. Proc. 53(a)(1)(C) ...................................................................................18 13 14 15 16 17 18 19 20 Other CNN, ICE arrested undocumented immigrants who came forward to take in undocumented children, September 20, 2018 ........................................................12 Dallas News, Feds admit it’s slow-going reuniting immigrant children at tent city with families, Oct. 12, 2018,................................................................................... 9 New York Times, Detention of Migrant Children Has Skyrocketed to Highest Levels Ever, Sept. 12, 2018 ............................................................................................... 8 New York Times, The Government is Moving Migrant Children to a Texas Tent City. Here’s What’s Behind It, October 1, 2018 .............................................................. 8 ORR Policy Guide, § 2.6.2, FINGERPRINTS................................................................11 U.S. Department of Health and Human Services, Unaccompanied Alien Children sheltered at Tornillo LPOE, Tornillo, Texas, October 12, 2018 ............................. 8 21 22 23 24 25 26 27 28 iv OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 5 of 24 Page ID #:24807 1 I. INTRODUCTION 2 Defendants urge the Court to remove its July 30, 2018, order (ECF 470) (“July 3 30 order”) from the purview of the independent monitor’s reference (ECF 494) on the 4 ground such oversight is a “sanction” that conflicts with the Settlement and that ORR 5 does not deserve in any event. The Court should deny Defendants’ motion. 6 As will be seen, the uncontroverted record demonstrates that ORR did not 7 timely comply with the July 30 order and is almost certainly not complying with it 8 now. Children detained at the Shiloh Residential Treatment Center (“Shiloh RTC”) 9 and elsewhere report that ORR continues to administer them psychotropic drugs 10 without informed parental consent or court order, continues to place them at Shiloh 11 without competently determining they pose a risk of harm to themselves or others, 12 and continues to deny them private telephone conversations. 13 The evidence also shows that ORR continues to place class members in secure 14 detention without giving children written notice in a language they understand of the 15 reasons for secure placement. Further, ORR is now detaining some 1,500 class 16 members for months in unlicensed “tent cities” where they are experience security, 17 conditions, and treatment wholly incompatible with the Settlement’s guarantee of 18 placement in licensed, non-secure dependent care facilities. 19 The record further shows that ORR has adopted a number of policies and 20 practices—particularly regarding fingerprinting of proposed sponsors—that 21 needlessly protract children’s detention. In essence, ORR seems to reason that if it 22 may not distend children’s confinement for howsoever long as its director may take 23 to approve their release, it may accomplish the same result by imposing ever24 increasing and needless demands for fingerprinting, while doing little or nothing to 25 enable sponsors to comply with those onerous requirements. 26 It will also be seen that ORR is increasingly committed to hobblig Plaintiffs’ 27 ability to monitor its compliance with the July 30 order and the Settlement, including 28 prohibiting Plaintiffs’ mental health experts from “engaging in a mental health 1 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 6 of 24 Page ID #:24808 1 evaluation” of detained children and insisting that any expert accompanying 2 Plaintiffs’ counsel execute an “all-encompassing” waiver of their right to privacy in 3 information about their “character, general reputation, personal characteristics, and/or 4 mode of living.” 5 Lastly, there is simply no legal support for Defendants’ notion that monitoring 6 is a “sanction” the Court may not impose without doing violence to the Settlement 7 itself. As the Court’s order of reference indicates, ORR’s violations of the July 30 8 order and the Settlement itself are not likely to end anytime soon; a monitor could 9 well prove indispensable to the Court’s adjudicating these violations efficiently while 10 it attends to the many other matters on its busy docket. 11 II. THE EVIDENCE SHOWS ORR IN CONTEMPT OF THE COURT’S JULY 30 ORDER AND 12 OTHERWISE IN BREACH OF THE SETTLEMENT. 13 A. 14 15 ORR continues to violate the July 30 order in its treatment of class members at Shiloh RTC. In July 30 order, the Court enjoined ORR against administering psychotropic 16 drugs to children detained at the Shiloh RTC unless it first obtains informed parental 17 consent or a court order authorizing it to do so. The Court further ordered ORR to 18 remove all class members from Shiloh RTC unless a licensed psychologist or 19 psychiatrist determines that a particular child poses a risk of harm to self or others. 20 On August 23, 2018, Plaintiffs’ counsel, accompanied by psychiatrist Amy 21 Cohen, M.D., visited the Shiloh facility and interviewed staff and children detained 22 there. Declaration of Amy Cohen, M.D., August 26, 2018, Exhibit 7 (“Cohen I”). 23 According to Dr. Cohen, Douglas Plaeger, Shiloh’s Program Director, stated 24 that someone from the Public Health Service had spent two days during the week of 25 August 13, 2018, reviewing case files for Shiloh’s then-current detainees, but had 26 actually only spoken to about three children only. Id. ¶ 8. Mr. Plaeger further stated 27 that ORR had not informed Shiloh of the results of this “file review,” and Shiloh had 28 2 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 7 of 24 Page ID #:24809 1 accordingly transferred no child to another facility because of ORR’s risk-of-harm 2 determinations. Id. 3 As regards psychotropics, Mr. Plaeger reported that Shiloh continued to 4 recognize ORR as wielding full authority to authorize Shiloh to administer children 5 medications on a non-emergent basis without parental consent or court authorization. 6 Id. at ¶ 9. Class members corroborated Mr. Plaeger’s admissions: 7 [One child] confirmed that since July 30, 2018, no one has interviewed him to 8 assess whether he poses a danger to himself or others. He further confirmed 9 that he continues to take Lexapro and that as far as he knows, no one from 10 Shiloh or ORR has asked [his adult family members] for permission to 11 continue giving him psychotropic medication. 12 All of the other children I assessed at Shiloh reported much the same: (i) no 13 one has spoken with them to assess whether they pose a risk of harm to 14 themselves or others; and (ii) Shiloh continues to administer psychotropic 15 medications without parental consent or court order. 16 Id. ¶¶ 10-11.1 17 As for removing class members from Shiloh who pose no risk of harm, ORR 18 did not complete its “file review” risk-determinations until about September 6, 2018. 19 Email from S. Fabian, September 7, 2018, Exhibit 12; Declaration of Carlos Holguín, 20 October 19, 2018, Exhibit 3 ¶ 7 (“Holguín”). Of the 13 children’s files ORR purports 21 to have evaluated, it ended up transferring only one to another facility. Id.2 22 23 As far as Plaintiffs can determine, ORR did not actually tell Shiloh to stop 24 medicating children without parental consent or court order until September 13, 2018, nearly a month and a half after this Court’s order. See Letter from ACF to Shiloh 25 RTC, September 13, 2018, Exhibit 11. 26 1 According to ORR’s report, it also released one class member to a sponsor, even as 27 it continued to house another three children at Shiloh whose release it had approved, seemingly despite their posing no risk of harm. Holguín ¶ 7. 28 2 3 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 8 of 24 Page ID #:24810 1 The utility of independent monitoring of ORR’s risk determinations is 2 manifest. ORR has refused to disclose (i) the identity or qualifications of the 3 individual who “determined” that the children remaining at Shiloh as of September 6 4 pose a risk of harm; (ii) the methodology or metric it used to determine such risk; and 5 (iii) the reports, if any, ORR prepared of its file-review risk assessments. Email from 6 S. Fabian, October 19, 2018, Exhibit 25. 7 There is good reason to question whether ORR’s risk determinations 8 adequately ensure that class members are placed at Shiloh only as the July 30 order 9 and the Settlement permit: 10 Nor, in my opinion, has ORR has evaluated Lucas—or any of the other twenty- 11 four children at Shiloh—carefully enough to conclude that any of them pose a 12 risk of harm to themselves or others. My extensive review of the records of 13 Lucas and another child have suggested that no standardized metric whatsoever 14 is used to evaluate actual risk to self. Rather, the mere admission of suicidal 15 thoughts have been sufficient to precipitate significantly elevated supervision 16 and transfer to a higher level of care, often—as in Lucas’s case—to the 17 detriment of these children. . . . 18 In my opinion, ORR’s treatment of Lucas and other children at Shiloh RTC 19 continues to fall far short of both accepted mental health care standards and the 20 “risk of harm” and informed consent standards set out in the Court’s order of 21 July 30. 22 Cohen I ¶ 7, 15. 23 Nor does it appear that ORR’s complying with the July 30 order has improved 24 since. On October 17, and 18, 2018, Plaintiffs’ counsel again interviewed class 25 members detained at Shiloh. Child after child reported that the Court’s order has had 26 little impact on ORR’s placing children at Shiloh or on the treatment they experience 27 there. 28 4 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 9 of 24 Page ID #:24811 1 Filed herewith as Exhibits 18-24 are the declarations of class members now 2 detained at Shiloh, some three and one-half months after the July 30 order. Their 3 declarations attest as follows: 4 1) ORR appears3 still to administer psychotropic medications to children 5 without their families’ consent or court order. Declaration of C., October 18, 2018, 6 Exhibit 18 ¶ 9 (class member administered psychotropic medication; “As far as I 7 know, my mom has not given permission for me to take the medication.”); 8 Declaration of F., October 18, 2018, Exhibit 20 ¶ 7 (same; class member 9 administered “about seven medications at night . . .”); Declaration of M., October 18, 10 2018, Exhibit 21 ¶ 10 (same; “Sometimes, I feel like I’ve been give twenty pills in 11 one day.”); Declaration of M., October 18, 2018, Exhibit 22 ¶¶ 8-9 (same; “The drugs 12 make me feel really tired and sluggish. . . . Sometimes I have stomach pain and a lot 13 of headaches. . . . No one from Shiloh has asked permission from my mother or my 14 aunt to give me the medications.”); Declaration of N., October 18, 2018, Exhibit 23 ¶ 15 6 (medication “makes me feel tired and unmotivated. As far as I know, my mom has 16 not given permission for me to take the medication.”).4 17 Plaintiffs have not had time to obtain ORR’s files for the declarants whose accounts are set out in Exhibits 18-24, and they cannot therefore exclude all possibility that 19 ORR may have obtained informed parental consent or court order allowing Shiloh to 20 medicate class members. 18 3 21 For its part, ORR has refused to provide Plaintiffs with copies of any consent or court 22 order it may have obtained. See Letter from C. Holguín to S. Fabian, August 10, 2018, Exhibit 1; Email from S. Fabian, October 19, 2019, Exhibit 26. Such 23 secretiveness underscores the need to retain compliance with the July 30 order in the 24 independent monitor’s duties. 25 At the July 27, 2018, hearing on Plaintiffs’ motion to enforce, the Court indicated that ORR should consider its order regarding medicating children at Shiloh RTC a 26 bellwether for medicating children detained at other facilities. 27 Nonetheless, ORR continues to administer psychotropic medications to children held 28 in facilities other than Shiloh without parental consent or court order. See Exhibits 30, 4 5 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 10 of 24 Page ID #:24812 1 2) ORR places children at Shiloh without competently evaluating whether they 2 are risks to themselves or others. See, e.g., Declaration of C., October 18, 2018, 3 Exhibit 18 ¶ 10 (“Since July 30, 2018, I do not remember receiving a psychiatric 4 evaluation to determine whether I am dangerous.”); Declaration of E., October 18, 5 2018, Exhibit 19 ¶ 10 (same); Declaration of F., October 18, 2018, Exhibit 20 ¶ 8 6 (same); Declaration of M., October 18, 2018, Exhibit 21 ¶ 11 (same); Declaration of 7 M., October 18, 2018, Exhibit 22 ¶ 10 (same); Declaration of N., October 18, 2018, 8 Exhibit 23 ¶ 8 (same). 9 3) Shiloh continues to monitor class members’ telephone calls with their family 10 members. Declaration of C., October 18, 2018, Exhibit 18 ¶ 6 (child speaks to mother 11 “twice a week and we are very close. These phone calls are not in private; my case 12 manager is always in the room. I would prefer to talk to my mom privately because 13 there are lots of things that I would like to tell her but don’t want my case manager to 14 overhear.”); Declaration of E., October 18, 2018, Exhibit 19 ¶ 9 (same); Declaration 15 of F., Exhibit 20 ¶ 4 (same); Declaration of M., Exhibit 21 ¶ 6 (same); Declaration of 16 M., October 18, 2018, Exhibit 22 ¶ 7 (same); Declaration of Y., October 18, 2018, 17 Exhibit 24 ¶ 8 (same); Declaration of N., October 18, 2018, Exhibit 23 ¶ 5 (same; “I 18 don’t think any kids here are having private phone conversations.”). 19 20 21 22 23 32, 33, 36, 38 and 39 (forms authorization Yolo County Juvenile Hall to medicate children without parental consent or court order); see also Declaration of G.A.L.R., 24 September 9, 2018, Exhibit 17 ¶ 10 (“I take multiple medications. I think they are for 25 sleep and anger. I do not know the names of the medications. I do not believe that my father knows about the medications I am on.”); Declaration of E.A.X.C., October 8, 26 2018, Exhibit 33 (“I am given medication to help me sleep here at Yolo. I do not have 27 any family in the U.S., and no one has contacted my family for permission to give me medication.”). 28 6 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 11 of 24 Page ID #:24813 1 2 3 B. ORR continues to deny children licensed placement without adequate reason or notice. The July 30 order bars ORR from placing children in secure, unlicensed 4 facilities except as ¶ 21 of the Settlement allows. Order at 31. It also requires ORR to 5 give detained children written notice in a language they understand of the reasons it 6 has placed them in a secure facility. The available evidence shows ORR is failing to 7 comply with this directive as well. 8 9 1. Secure placement without adequate notice. The evidence before the Court shows that ORR continues to confine class 10 members at secure facilities such as Yolo County Juvenile Hall without providing 11 them notice of its reasons for doing so in a language they understand, a violation of ¶ 12 24C of the Settlement and this Court’s July 30 order. See Notice of Placement in 13 Restrictive Setting re: B., August 16, 2018, Exhibit 29; Declaration of B., October 18, 14 2018, Exhibit 28 (“I did not understand what I was signing. I do not read, write, or 15 understand English and the document was never presented or read to me in a 16 language that I understand.”). 17 18 2. Unlicensed placement without lawful reason. ORR’s forms also indicate that it continues to place class members at Yolo for 19 no ascertainable reason at all, much less one the July 30 order permits. E.g., Notice of 20 Placement in Restrictive Setting re: D., August 29, 2018, Exhibit 35 (indicating 21 secure placement because class member had been “previously placed at Yolo Secure . 22 . .” pending “reassess[ment] to determine if appropriately placed.”). And it 23 increasingly clear that ORR is placing children in secure, unlicensed facilities on an 24 unprecedented scale. 25 In June 2018, ORR constructed a “tent city” near the Tornillo Port of Entry in 26 Texas (“Tornillo”). Originally described as a “temporary facility” capable of holding 27 400 children, Tornillo is now expected to remain open until at least the end of this 28 year and has been expanded to hold up to 3,800 children. The New York Times, 7 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 12 of 24 Page ID #:24814 1 Migrant Children Moved Under Cover of Darkness to a Texas Tent City, Sept. 30, 2 2018, available at www.nytimes.com/2018/09/30/us/migrant-children-tent-city3 texas.html (last visited October 19, 2018). 4 According to Defendants’ “fact sheet” on Tornillo, ORR is now confining 5 some 1,500 children at the Tornillo detention camp. U.S. Department of Health and 6 Human Services, Unaccompanied Alien Children sheltered at Tornillo LPOE, 7 Tornillo, Texas, October 12, 2018, Exhibit 13 (“Fact Sheet”); see also, New York 8 Times, Detention of Migrant Children Has Skyrocketed to Highest Levels Ever, Sept. 9 12, 2018, available at www.nytimes.com/2018/09/12/us/migrant-children10 detention.html (last visited October 17, 2018). 11 Defendants’ fact sheet verifies that children at ORR’s tent city “do not 12 integrate into the local community,” “do not attend local schools,” and “remain under 13 the supervision of shelter staff at all times.” Fact Sheet at 2. Nowhere does the fact 14 sheet assert that the detention camp is state-licensed to care for dependent children, as 15 the Settlement requires; news reports indicate it is not. See, e.g., New York Times, 16 The Government is Moving Migrant Children to a Texas Tent City. Here’s What’s 17 Behind It, October 1, 2018, available at www.nytimes.com/2018/10/01/us/migrant18 children-tent-city-camp-texas.html (last visited October 17, 2018) (“The shelters are 19 licensed and monitored by state child welfare agencies that impose requirements on 20 staff hiring and training, as well as education and safety. . . . Conversely, the tent city 21 is considered an ‘emergency shelter’ and is thus unregulated, except for a loose set of 22 guidelines crafted by the Department of Health and Human Services, which oversees 23 it.”). 24 Nor is it clear that ORR may house children at the Tornillo detention camp on 25 grounds of “emergency” or “influx” as the Settlement defines them. See Settlement ¶ 26 12B. To the contrary, ORR’s own data confirm that the agency simply does not 27 28 8 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 13 of 24 Page ID #:24815 1 transfer children from Tornillo to properly licensed facilities “as expeditiously as 2 possible,” a prima facie violation of Settlement ¶ 12(3).5 3 ORR’s monthly statistical reports reveal that as of September 13, 2018, ORR 4 was detaining approximately 1,067 children at the Tornillo camp. Holguín ¶ 4. Of 5 these, 46 children had been at Tornillo since June, 45 since July, and 493 since 6 August. Id. ORR accordingly detained scores of children at Tornillo for prolonged 7 periods without transferring them to licensed placements. Indeed, ORR’s fact sheet 8 indicates that the agency does not place children at Tornillo as an initial response to 9 an influx or emergency at all, but instead removes them from licensed placements in 10 order to send them to the unlicensed tent city. Fact Sheet at 1 (“UAC spend on 11 average 25 days at Tornillo. Most all are about to be released to a suitable sponsor.”). 12 There is no telling how many more children ORR has “temporarily” confined 13 at Tornillo for protracted periods as of this writing. Leah Chavla, lawyer and policy 14 advisor with the Women’s Refugee Commission, recently visited the detention camp. 15 Facility operators told her that “many of youth there were those that were awaiting 16 results of fingerprints of their prospective sponsors.” Declaration of Leah Chavla, 17 October 18, 2018, Exhibit 14. They also reported that there were “over 150 children 18 [there] who were classified as “Category 4”: namely, children with no viable family 19 ORR’s reports indicate that the percentage of children at Tornillo ORR releases to family has dropped significantly from June to August of 2018. Id. HHS claims that 21 “logistical challenges” have slowed reunifications. Dallas News, Feds admit it’s 22 slow-going reuniting immigrant children at tent city with families, Oct. 12, 2018, available at www.dallasnews.com/news/immigration/2018/10/12/feds-admit-slow23 going-reuniting-immigrant-children-tent-city-families (last visited October 19, 2018). 20 5 24 As discussed post, however, there is good reason to believe that ORR’s ever-more 25 extreme vetting of detained children’s parents and other available custodians is needlessly prolonging class members’ detention, thereby contributing to the “influx” 26 or “emergency” ORR cites as justification for its using Tornillo and other irregular 27 detention camps. Id. (reporting that delays in completing fingerprint and background checks in turn delay children’s release for months). 28 9 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 14 of 24 Page ID #:24816 1 member in the United States to receive them. Children with no viable sponsor 2 typically remain in custody for extended periods and are accordingly most in need of 3 prompt placement in properly licensed facilities. Id. Since her visit, Chavla has 4 learned from service providers that ORR has detained children at Tornillo for 5 “several months.” Id. 6 Plaintiffs’ counsel has notified ORR that they intend to interview class 7 members at the Tornillo detention camp on October 25 and 26, 2018. Should they 8 confirm the foregoing, Plaintiffs would be obliged to seek relief from this Court 9 enjoining ORR’s violations of the Settlement’s licensed placement requirement. 10 Defendants will almost certainly dispute some or all of the evidence bearing on this 11 issue. Including ORR facilities in the independent monitor’s portfolio would 12 accordingly further judicial economy. 13 C. ORR continues to unnecessarily prolong class members’ detention. 14 This Court’s order of July 30 enjoined ORR from pursuing certain policies and 15 practices that unnecessarily extend class members’ detention. E.g., July 30 Order at 16 32 (enjoining blanket policy of requiring that post-release services be in place prior to 17 the release of a class member to a sponsor for whom home study was conducted). The 18 evidence indicates that ORR continues to pursue policies and practices that protract 19 children’s detention unnecessarily. An independent monitor would prove helpful to 20 the Court’s adjudicating whether these policies and practices accord with the 21 Settlement. 22 23 24 1. ORR’s fingerprinting policies and practices unnecessarily protract class members’ detention. In June of 2018, ORR, without going through the formal rulemaking process, 25 prescribed substantially more burdensome fingerprinting requirements on class 26 members’ parents and other available custodians. Previously, proposed sponsors and 27 their adult household members only had to provide fingerprints in relatively limited 28 circumstances: e.g., when there was a documented risk to the safety of the child, 10 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 15 of 24 Page ID #:24817 1 when a particular child was “especially vulnerable,” or when ORR had studied the 2 proposed sponsor’s home. ORR Policy Guide, § 2.6.2, FINGERPRINTS, available at 3 https://web.archive.org/web/20180209024712/https://www.acf.hhs.gov/orr/resource/c 4 hildren-entering-the-united-states-unaccompanied-section-2 (last visited October 19, 5 2018). 6 ORR’s current policy, however, requires that all potential sponsors, as well as 7 all members of their households, undergo fingerprinting. ORR Policy Guide, § 2.6.2, 8 FINGERPRINTS, available at www.acf.hhs.gov/orr/resource/children-entering-the9 united-states-unaccompanied-section-2 (last visited October 19, 2018) (“All 10 individuals seeking to sponsor a UAC and adults in their household are subject to 11 fingerprinting requirements. . . Revised 6/7/18.”). 12 Though fingerprinting is not in and of itself objectionable, ORR’s failure to 13 increase the number or capacity of its vendors to accommodate the vastly increased 14 workload its current fingerprinting policy creates, is. 15 Merely scheduling a fingerprinting appointment now takes months. See 16 generally, Second Amended Complaint at 17, J.E.C.M et al. v. Lloyd et al., 18-cv-903 17 (E.D. Va. 2018) (“. . . appointments are being scheduled as far as one or two months 18 out”). Once sponsors submit to fingerprinting, they must typically wait additional 19 months for results. Fingerprinting delays now extend the time class members spend in 20 ORR custody by months. See, S.E.V. v. Lloyd, et al., 18-cv-4555 (S.D.N.Y. Oct. 5, 21 2018) (finding that “S.E.V.’s release has apparently been delayed by a new ORR 22 policy requiring parents to be fingerprinted . . . .”); Declaration of Leah Chavla, 23 Exhibit 14 ¶ 4 (“I know that since the summer, there have been significant delays in 24 fingerprinting . . . “); Declaration of C., October 18, 2018, Exhibit 18 ¶ 7 (“[My 25 mom] submitted her fingerprints in early July, as did my aunt and uncle who live with 26 her. . . . After all these months, we’re still waiting for the federal agent to approve my 27 mom’s fingerprints.”); Declaration of M., October 18, 2018, Exhibit 22 ¶ 6 (“My aunt 28 applied to be my sponsor back in July. My case worker said that her home study, 11 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 16 of 24 Page ID #:24818 1 applications, and finger prints were good, and we are only waiting on finger prints to 2 clear for my twenty-three-year-old cousin who is to act as my backup caregiver. They 3 told me the fingerprints would only take 15 days, but that time has now passed.”); 4 Declaration of W, October 17, 2018, Exhibit 25 ¶ 12-13 (“Around 45 days ago, my 5 father submitted his fingerprints. We have not gotten back any results. . . . Today the 6 social worker told me that she is going to pressure the government to process my 7 father’s fingerprints because that is the only thing holding me from being reunited 8 with my father.”). 9 Defendants have also embarked on a policy and practice aimed at discouraging 10 parents and other potential custodians from seeking custody of detained children at 11 all. In a profound and disturbing departure from prior policy and practice, ORR now 12 sends fingerprints and extensive personal information of all would-be sponsors and 13 their adult household members to ICE. 14 In April of 2018, ORR, ICE, and CBP executed a Memorandum of Agreement 15 whereby ORR sends sponsors’ fingerprints and other personal information to DHS. 16 Memorandum of Agreement, April 13, 2018, § 5(B), Exhibit 8 (“ORR will provide 17 ICE with the name, date of birth, address, fingerprints . . . and any available 18 identification documents or biographic information regarding the potential sponsor 19 and all adult members of the potential sponsor’s household”). 20 Although Defendants’ nominally justify this on grounds of child safety, on 21 September 18, 2018, an ICE official admitted that since ORR began sharing 22 sponsors’ information, it had apprehended at least 41 sponsors and their family and 23 household members. CNN, ICE arrested undocumented immigrants who came 24 forward to take in undocumented children, September 20, 2018, available at 25 www.cnn.com/2018/09/20/politics/ice-arrested-immigrants-sponsor26 children/index.html (last visited October 19, 2018). 27 In fact, ORR’s sharing potential sponsors’ fingerprints with ICE is wholly 28 unnecessary to ensure child safety. See Declaration of Cecilia Saco, July 14, 2018, 12 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 17 of 24 Page ID #:24819 1 Exhibit 9 ¶ 7 (Los Angeles County Department of Children and Family Services 2 submits fingerprints “to three data bases: California Department of Justice (“DOJ”), 3 FBI and California CACI (Child Abuse Central Index). . . . To the best of my 4 knowledge, DCFS does not share live scan information with ICE except pursuant to 5 court order.”). 6 Obviously, when the threat of arrest and removal succeeds in deterring parents 7 and other potential custodians from coming forward, children suffer longer and 8 longer periods in ORR detention, a result wholly inimical to their welfare and ORR’s 9 statutory obligation to care for children, not turn them into a tool of law enforcement. 10 See generally Flores v. Sessions, 862 F.3d 863, 876 (9th Cir. 2017) (“focus on care 11 and placement—rather than on detention—is evident from the plain text” of the 12 Homeland Security Act and the Trafficking Victims Protection Act). 13 Unless Defendants’ information-sharing furthers child safety or securing a 14 child’s appearance, doing so violates the Settlement’s requirement of expeditious 15 release. A special master would assist the Court in determining Defendants’ policy 16 and practice in fact protect children, or merely injure them even more. 17 III. ORR HAS OBSTRUCTED PLAINTIFFS’ EFFORTS TO DETERMINE WHETHER IT IS 18 COMPLYING WITH THE COURT’S JULY 30 ORDER AND IS OTHERWISE IN BREACH OF 19 THE SETTLEMENT. 20 A. ORR’s limiting Plaintiffs’ experts’ access to detained children lacks 21 a rational basis and appears aimed at shielding ORR’s mistreatment 22 of class members from meaningful scrutiny. 23 Paragraph 32 of the Settlement requires ORR to allow class counsel 24 confidential attorney-client interviews with detained class members “in accordance 25 with generally applicable policies and procedures relating to attorney-client visits at 26 the facility in question.” As far as Plaintiffs know, no ORR facility has a written 27 policy or procedure against lawyers’ having experts, including mental health 28 13 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 18 of 24 Page ID #:24820 1 professionals, assist them interview detained clients. See, e.g., St. Michael’s Home 2 for Children, Procedure: Attorney of Record, July 7, 2017, Exhibit 10-2. 3 Nonetheless, on July 11, 2018, ORR refused to permit Plaintiffs’ consulting 4 mental health expert, Dr. Amy Cohen, to interview class members at the Shiloh RTC. 5 Email from S. Fabian, July 11, 2018, Exhibit 10. When Plaintiffs’ counsel insisted on 6 reviewing Shiloh’s generally applicable policies and procedures relating to attorney7 client visits, Defendants forwarded the document filed herewith as Exhibit 10-1. 8 Shiloh’s written policy nowhere bars attorneys’ consulting experts from 9 participating in meetings with detained clients; indeed, the policy ORR provided does 10 not appear to address attorney-client visits at all, suggesting that Shiloh RTC may in 11 fact have no policy regarding attorney-client visits, itself a likely violation of the 12 Settlement. Settlement ¶ 32C (“Agreements for the placement of minor in non-INS 13 facilities shall permit attorney-client visits, including by class counsel in this case.”). 14 After vigorous objection by class counsel, ORR relented and allowed Dr. 15 Cohen access to Shiloh detainees. Subsequently, however, ORR pronounced a 16 blanket policy barring Plaintiffs’ mental health experts from attending confidential 17 attorney-client meetings: 18 ORR’s position is that the participation of mental health experts in attorney- 19 client visits under Paragraph 32 is not mandated by the settlement agreement. 20 Further, ORR’s child welfare experts are concerned that for minors who 21 already have access to trauma-informed, individual and group mental health 22 services . . . introduction of another unfamiliar mental health professional 23 during attorney-client visits who ask the children to repeat their stories is not 24 consistent with trauma-informed practice and child welfare principles. 25 Therefore, going forward, ORR . . . will not permit such participation. 26 Email from S. Fabian, October 10, 2018, included in Exhibit 4. 27 ORR’s barring Plaintiffs’ counsel’s experts from participating in attorney28 client meetings is utterly devoid of any rational basis: 14 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 19 of 24 Page ID #:24821 1 In my professional opinion, ORR’s blocking detained children from speaking 2 with plaintiffs’ mental health experts is not only unwarranted by any specific 3 data or professional literature, but in fact represents the potentially dangerous 4 removal of a layer of protection for children under ORR custody. . . . 5 In Psychiatry, as in all other areas of patient care, the expert second opinion is 6 the gold standard by which current therapies are evaluated: the thoroughness of 7 assessment, the accuracy of diagnosis, the efficacy of treatment. This is 8 especially important for those with histories of trauma, where presentation is 9 inconsistent, misdiagnosis common, and treatment complex and often 10 ineffective, if not downright harmful. The notion that it is dangerous or 11 counterproductive to conduct interviews with children suffering trauma to 12 obtain a second opinion is not borne out by the literature nor by my years of 13 experience. . . . 14 Declaration of Dr. Amy Cohen, October 18, 2018, Exhibit 6 ¶¶ 7-8 (“Cohen II”). 15 ORR’s limiting mental health professionals’ access to detained children 16 appears aimed less at protecting children than it does concealing violations of the 17 Settlement and this Court’s orders. The Court’s including ORR facilities in the 18 Special Master’s mandate would do much to ensure that such violations do not go 19 unnoticed.6 20 21 22 23 24 Perhaps sensing the untenability of its position, ORR Yesterday partially 25 backpedaled from its blanket exclusion of mental health experts. See Email from S. 26 Fabian, October 18, 2018, Exhibit 26. 6 27 The agency, however chastened, continues to insist that it will not permit Plaintiffs’ experts to “engag[e] in a mental health evaluation . . .” of detained children. Id. 28 15 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 20 of 24 Page ID #:24822 1 B. ORR’s invasive background checks of Plaintiffs’ mental health and 2 other experts aim to deter effective monitoring of the July 30 order 3 and the Settlement in general. 4 ORR’s efforts to evade scrutiny of its compliance with the Settlement and this 5 Court’s order go further still: the agency now insists that Plaintiffs’ consulting experts 6 and interpreters execute the “Background Check Consent Form,” Exhibit 5-1, several 7 days before speaking with detained children. Again, ORR’s demand is nowhere to be 8 found in the Settlement, nor is it all rationally related to any legitimate concern for 9 child welfare. 10 To the contrary, like this Court’s order appointing an independent monitor, 11 ECF 494 at 16, the Settlement nowhere requires that Plaintiffs give ORR any advance 12 notice that they will conduct attorney-client meetings at a particular detention facility. 13 See Settlement ¶ 32. Obviously, ORR’s completing a background check, even one far 14 less invasive than that their form contemplates, takes time and cannot be 15 accomplished unless Plaintiffs give notice well in advance of visiting any ORR 16 detention facility. ORR, therefore, has no authority to demand that Plaintiffs’ experts 17 submit to background checks at all. 18 Plaintiffs’ counsel have nonetheless extended ORR the courtesy of notifying it 19 in advance of monitoring visits and providing their experts’ names and driver’s 20 license numbers. Until recently, that has been good enough. Holguín ¶ 6. ORR’s 21 present background checks, however, are so distended and invasive of privacy as to 22 amount to a “poison pill” aimed at deterring qualified experts from stepping forward 23 to assist in evaluating ORR’s treatment of children detained in an ever expanding 24 network of juvenile detention centers. 25 ORR’s form, entitled “Consent to Pre-Visit Background Check,” authorizes it 26 to obtain a “‘consumer report’ which may include information about your character, 27 general reputation, personal characteristics, and/or mode of living.” Exhibit 5-1. By 28 signing the form, a volunteer expert or translator cedes ORR authority to obtain “all16 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 21 of 24 Page ID #:24823 1 encompassing” personal information, including “information regarding your credit 2 history, criminal history, social security verification, motor vehicle records, 3 verification of your education or employment history, or other background checks.” 4 That ORR’s demands are grossly and unnecessarily invasive of personal privacy 5 cannot be gainsaid: 6 During the course of my professional duties, I have been permitted access to 7 numerous juvenile institutions; I have never been required to consent to the 8 broad disclosure of personal information ORR’s form demands. It is my 9 personal and professional opinion that requiring consent to ORR’s collecting 10 such information is unnecessary and a strong deterrent to mental health 11 professionals’ assisting class counsel in monitoring ORR’s compliance with 12 court orders and the Flores settlement, particularly those of us who devote our 13 time pro bono publico. In my opinion, ORR’s demanding mental health 14 practitioners to broadly renounce their rights to personal privacy aims more to 15 shield it from unwanted scrutiny than to serve any legitimate concern for child 16 welfare. 17 Cohen II ¶ 15. 18 The Court’s including ORR facilities within the independent monitor’s duties 19 would ensure that meaningful scrutiny of ORR’s compliance with the July 30 order 20 and the Settlement will not be defeated for want of experts and translators willing to 21 surrender their personal privacy in order to help detained children.7 22 23 24 25 26 ORR’s demand for vast amounts of personal information also appears to violate the 27 Paperwork Reduction Act, 44 U.S.C. § 3501 (requiring federal agencies to get OMB approval any time they demand personal information from ten or more individuals). 28 7 17 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 22 of 24 Page ID #:24824 1 IV. INDEPENDENT MONITORING OF ORR’S COMPLIANCE WITH THE COURT’S JULY 30 2 ORDER IS NOT A SANCTION AND COULD IMPOSE NO APPRECIABLE OPERATIONAL 3 BURDEN ON ORR. 4 The Court should also deny ORR’s motion because it mischaracterizes the 5 appointment of a special master/independent monitor as a “sanction.” 6 The function of a special master is to assist the Court with matters that “cannot 7 be effectively and timely addressed by an available district judge or magistrate 8 judge[.]” Fed. R. Civ. Proc. 53(a)(1)(C). Courts have appointed special masters 9 “[b]ecause of the complexity of litigation and problems associated with compliance 10 with the district court order.” Hoptowit v. Ray, 682 F.2d 1237, 1263 (9th Cir. 1982); 11 see also Organization for Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 542 12 (9th Cir. 1987) (the “prospect of numerous, time-consuming hearings concerning 13 noncompliance with the injunction” constitutes “exceptional condition” warranting 14 reference to special master); Hook v. State of Arizona, 120 F.3d 921, 926 (9th Cir. 15 1997).8 16 17 18 19 ORR’s attempt to distinguish Hook and United States v. Suquamish Indian Tribe, 901 F.2d 772 (9th Cir. 1990), is unavailing. 8 20 ORR argues that these cases approve the appointment of special masters to oversee injunctions, whereas the instant appointment involves oversight of a consent decree. 21 The short answer to Defendants’ point is that the prospective provisions of a consent 22 decree are an injunction. See Plummer v. Chemical Bank, 668 F.2d 654, 659 (2d Cir. 1982); Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983). 23 In all events, ¶ 32 of the Settlement authorizes Plaintiffs’ to appoint third parties to 24 assist them in monitoring ORR’s treatment of class members. The July 30 order 25 directs ORR to comply with the Settlement; ¶ 32, a fortiori, authorizes Plaintiffs to appoint a third party to monitor the July 30 order as well. 26 27 The Court’s appointing a monitor is therefore, not qualitatively different from what the Settlement itself authorizes. The order of reference does grant the special master 28 greater access to class members and information, but that, of course, is an entirely 18 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 23 of 24 Page ID #:24825 1 A special master’s authority is limited by the order of appointment, but 2 typically includes authority to compel, take, and record evidence. Fed. R. Civ. Proc. 3 53(c)(1)(A)-(C). They may be authorized to impose non-contempt sanctions, but may 4 only recommend contempt to a judge. Fed. R. Civ. Proc. 53(c)(2). Inasmuch as a 5 special master may be authorized to impose non-contempt sanctions, merely 6 appointing a master could hardly itself be a sanction. Cf. Silvers v. Sony Pictures 7 Entm’t, Inc., 402 F.3d 881, 885 (9th Cir. 2005) (“when a statute designates certain 8 persons, things, or manners of operation, all omissions should be understood as 9 exclusions.”). This Court’s assigning a special master to assist it is no more a 10 “sanction” than was its having assigned a judge to hear this case in the first instance. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 reasonable and necessary measure if the Court is to address the violations of the July 25 30 order and the Settlement it will surely be called upon to adjudicate. 26 Finally, were ORR’s instant objection valid, it would also preclude the Court’s 27 having appointed an independent monitor to oversee DHS’s compliance with its order of June 27, 2017 (ECF 363) as well. 28 19 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 501 Filed 10/19/18 Page 24 of 24 Page ID #:24826 1 V. CONCLUSION 2 For the foregoing reasons, the Court should deny Defendants’ motion to 3 modify its order appointing a special master/independent monitor. 4 5 6 7 8 9 10 11 12 13 14 Dated: October 19, 2018. Respectfully submitted, CARLOS R. HOLGUÍN PETER A. SCHEY Center for Human Rights & Constitutional Law LEECIA WELCH NEHA DESAI CRYSTAL ADAMS National Center for Youth Law HOLLY COOPER CARTER WHITE U.C. Davis School of Law 15 /s/ Carlos Holguín Carlos Holguín One of the Attorneys for Plaintiffs 16 17 18 19 20 21 22 23 24 25 26 27 28 20 OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING INDEPENDENT MONITOR CV 85-4544-DMG (AGRX)